The Right Honourable Sir Julius Chan v The Ombudsman Commission of Papua New Guinea (1999) SC607

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J and Jalina J:
• Judgment Date: 25 June 1999
• Citation: [1999] PNGLR 240
• Court: Supreme Court
• Year: 1999
• Judgement Number: SC607

Supreme Court: Kapi DCJ, Sheehan J, Jalina J

Judgment Delivered: 25 June 1999

SC607

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA No. 58 of 1998

BETWEEN:

THE RIGHT HONOURABLE SIR JULIUS CHAN

Applicant

AND:

THE OMBUDSMAN COMMISSION

OF PAPUA NEW GUINEA

Respondent

Waigani: Kapi DCJ., Sheehan J., Jalina J.

28th June, 2nd October 1998, 25th June 1999

Appeal — objections to competency — whether a direction on evidence is a judgment within the meaning of s 1(1) of Supreme Court Act.

Appeal — application for leave to appeal under Supreme Court Act, s 14 (3) (b) — proper principles for exercise of discretion.

Judicial review — direction on nature of evidence for substantive hearing of judicial review under Order 16 of National Court Rules.

N. M. Cooke QC with M. M. Varitimos for the appellant

D. Cannings for the respondent

25th June 1999

KAPI DCJ: The Ombudsman Commission (the Commission) commenced investigations into the circumstances surrounding the purchase of "The Observatory" in Cairns, Australia, by the Board of the Public Officers Superannuation Fund under Part IV of the Organic Law on Ombudsman Commission (Organic Law). The Commission compiled a "Preliminary Report" (report) on its investigations. In this report, reference is made to various individuals in connection with the subject matter of the investigations. These persons included Sir Julius Chan (the appellant) who was the Prime Minister of Papua New Guinea at the time the property referred to above was purchased. He was served with a copy of the report and was invited to respond to parts of the report that made reference to his involvement . I presume that this was done in accordance with s 17 (4) (b) of the Organic Law. To date the appellant has not responded.

Instead, he filed judicial review proceedings against the compilation of the report pursuant to O 16 of the National Court Rules (Rules) on the grounds which include allegations that there has been breaches of the principles of natural justice. I will come back to the grounds of review later in the judgment.

Leave for judicial review has been granted. In preparation for the substantive hearing of the review, parties came before Woods J. for directions in various matters such as discovery, the form in which evidence may be admitted and cross examination of any witnesses. The trial judge expressed the desire to hear full arguments on these directions. The parties made submissions on 6th July and His Honour gave his ruling in a reasoned decision on 15th July 1998 and gave the following directions:

"This review will be done on the basis of the Statement made in support of the application and the affidavit of the applicant filed at the time the application was filed and when presumably the applicant indicates where and how he believes he has been denied natural justice and a right to be heard. And the preliminary report will also be available for the review. It is not appropriate to order any more discovery. I gave a limited discovery at the time leave was granted and that discovery was to allow to acquaint himself with the relevant leases or transfers or proposals to remind himself of any matters where he may be implicated or where he may have knowledge. Anything else must be purely within the knowledge and memory of the applicant. There is no need for any further subpoenas, and most of the matters already under subpoena are not necessary for the hearing of this review. Of course if they may help the applicant remind himself of matters where he may have been able to assist the investigation then so be it or alternatively if he felt that an investigation had overlooked them to his advantage then of course it was open to him to draw the Commission's attention to them or request that such be included in their final report, via Section 17 (4) of the Organic Law.

I will schedule the review for hearing on Monday 31st August 1998"

The appellant filed application for leave to appeal against this ruling pursuant to s 14 (3) (b) of the Supreme Court Act (Act). There is no dispute that this is an interlocutory ruling and therefore leave is required. The application for leave to appeal has come before us for determination. This is the first matter that should be dealt with (see Hentzy Yakham and the National Newspaper v Dr Stuart Merriam and Carrol Merriam (SCA No. 94 of 1996); The Independent State of Papua New Guinea and Michael Nali v Dr Stuart Merriam and Carrol Merriam (Unreported judgement of the Supreme Court dated 27th November 1997, SC533).

At the hearing of the application on 28th August 1998, counsel for both parties made full submissions on whether or not we should grant leave to appeal. During submissions, counsel for the appellant sought to rely on a formal order entered subsequent to the ruling on 15th July 1998. It is not necessary to set out the terms of the order as it will become apparent later in my judgment that it will not be necessary to refer to it in the determination of the issues in the present case.

This order was not drawn to the attention of counsel for the Commission until the hearing of the application for leave. Counsel for the Commission submitted that this order presents an obstacle to a legal submission he proposes to make with regard to the competency of the application for leave to appeal, namely, that the directions given by the trial judge is not a judgment or an order within the meaning of the provisions of the Supreme Court Act and therefore there cannot be an application for leave to appeal.

The Court retired briefly to consider its ruling in view of the fact that the trial of the matter was set down for Monday, 31st August 1998. Upon perusal of the formal order, the Court took note of the fact that some of the terms of the formal order were not identical to the ruling given by the trial judge. This was drawn to the attention of the parties and the Court sought to clarify the terms of the order and whether or not this order was entered with the knowledge and authority of the trial judge. The parties were unable to settle these matters. In the circumstances, the Court indicated that it would not give its decision on the application for leave to appeal until the nature and the terms of the formal order was clarified. The Court directed that the parties should go before the trial judge on 31st August 1998 and clarify the order. In the circumstances, the Court had no alternative but to adjourn the determination of application for leave to appeal to another date and consequently stayed the commencement of the trial scheduled for 31st August 1998.

The matter came back for further hearing on the 2nd October 1998 and counsel advised the Court as to what transpired on the 31st August before the trial judge. It is not necessary to set out the full details of the proceedings before the trial judge. The trial judge after hearing submissions from counsel, simply set aside the formal order and stated that the ruling on the 15th July 1998 speaks for itself.

Counsel for the appellant complained about the correctness of this ruling and he indicated that the appellant may appeal this decision. Counsel for the appellant sought a further adjournment of the application for leave to enable such an appeal to be pursued. We dismissed the application and proceeded to complete the hearing on application for leave to appeal.

The position is that the formal order is now no longer in existence. Counsel for the parties made further submissions on the merits of the application for leave to appeal.

I now consider the merits of the application for leave to appeal. This application raises the issue of the nature of evidence that may be required to determine the merits of such a review.

Before I consider these issues, it is necessary to determine the preliminary issue which has been raised, namely, whether the application for leave to appeal is competent. Counsel for the Commission submits that the present application is incompetent in that the directions given on 15th July 1998 do not come within the meaning of "judgment" under s 1 (1) Supreme Court Act and therefore no application for leave may be brought. He relies on cases from Australia (Landsal v REI Building Society) (1993) 41 FCR 421; French Caledonia Travel Service Pty Ltd v Elatri (Full Court of the Federal Court, unreported judgment dated 22nd May 1992)). Counsel also relies on Moresby North East Election Petition [1977] PNGLR 429) for the proposition that an "interlocutory judgment" is a decision given upon a particular motion or summons before the Court. In the present case, he...